University of Illinois Law Review
Initially, it might seem an affront to the history of slavery in this country to suggest that similar concerns are raised by an expectation that debtors pay their debts. Nevertheless, certain aspects of the Bankruptcy Code present genuine constitutional difficulties under the Thirteenth Amendment. These difficulties have been recognized for several decades, albeit as a matter of speculation. Now, however, un- der the 2005 Amendments to the Bankruptcy Code, this issue is no longer speculative. Under the 2005 Amendments, an individual debtor may be put into a chapter 11 proceeding involuntarily, and re- quired to make payments under a plan proposed by creditors out of future income.
This Article examines the history of the Thirteenth Amendment, focusing on its application in the context of involuntary servitude and peonage, and assesses the merits of the constitutional case. The Arti- cle demonstrates why bankruptcy courts may be statutorily empow- ered to enter orders that they cannot constitutionally enforce. It then examines the prohibitions on imprisonment for debt that may also be implicated by the use of coercive orders.
This Article illustrates how, in effect, the Bankruptcy Code has created a system of rights for creditors that are unenforceable. As the Thirteenth Amendment prohibits courts from enforcing confirmation orders against uncooperative debtors by issuing coercive orders, the only remedies available to a bankruptcy court facing a recalcitrant debtor are dismissal and conversion. Congress may not have ex- pected this when it passed the 2005 Amendments, but only because it did not bother to do the necessary constitutional analysis.
Margaret Howard, Bankruptcy Bondage, 2009 U. Ill. L. Rev. 191 (2009).